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THE LATEST NZJER


New Zealand Journal of Employment Relations
Volume 36  Number 3

In the latest New Zealand Journal of Employment Relations the following topics are covered. If you wish to read the full articles or download the entire NZJER issue you need to subscribe to the NZJER.

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Introducing the Forum

The emergence of this Issue

High profile disputes bring less-recognised employment relations topics to the forefront of public attention. The 2010 dispute surrounding the Hobbit production involved one of the world‟s major screen productions, an international boycott by actors, and the possibility of the production being relocated to another country. As such, it formed a major event in employment relations. The passion and controversy associated with the dispute gained international attention, creating a renewed interest in the relationships between business, Government, and unions as well as rekindling the debates surrounding non-standard employment and collective representation. The dispute formed a vital case study that warrants dedicated coverage in an employment relations journal.

Editorial team
Rupert Tipples, Supervising Editor
Bernard Walker, Guest Editor

A Synopsis of the “Hobbit Dispute”

A.F TYSON*

Abstract
The dispute between New Zealand Actors Equity (NZAE) and The Hobbit Film Production appeared to industry outsiders to have come out of nowhere. However, it was actually the most high profile of a number of actions taken by NZAE to negotiate collective contracts for its members. The intense media interest combined with unexpected cultural and political forces to impact upon the resolution of this industrial dispute. This synopsis surveys media coverage to introduce the main parties to the dispute and draw a chronological overview of the events that led to the National Government changing employment law with regard to film performers.


* A.F Tyson is currently a Research Assistant at the University of Canterbury.

How does non-standard employment affect workers? A consideration of the evidence

BERNARD WALKER*

Abstract
Non-standard employment is an increasingly significant component of labour arrangements. A long-running debate concerns the consequences of this form of employment with opponents arguing that it disadvantages workers. Although considerable research has occurred, the findings are largely inconsistent and inconclusive. This paper explores recent studies and the matters that need to be addressed in order to develop a more comprehensive explanation. It proposes a need to broaden the agenda to explore the processes and contexts leading to the introduction of non-standard employment.

* Bernard Walker is a Senior Lecturer in Organisational Leadership and Development at the University of Canterbury.

The Hobbit Dispute

HELEN KELLY*

Abstract
Helen Kelly, from the NZCTU, provides a brief invited comment highlighting the limited protections for the contractors, as well as exploring the interface between trade union activities and commercial legislation.


* Helen Kelly is the President of the New Zealand Council of Trade Unions


One Law to Rule Them All

MP KATE WILKINSON*

Abstract
The Hon. Kate Wilkinson offers a similarly brief, invited comment as Minister of Labour, explaining the Government’s actions. Her article points to the economic value of the film industry, along with the immediate and long term consequences of losing the Hobbit production, which resulted in the need for the government to take rapid action to protect these areas. The article argues that the ‘Hobbit law’ brings greater certainty regarding employment status, and reflects the nature and practice of the industry.


* The Hon. Kate Wilkinson is the Minister of Labour.


Non-standard Work: an Employer Perspective

BARBARA BURTON

Abstract
Barbara Burton, from Business NZ, provides an invited comment looking at the issue of non-standard work from an employer/business perspective.  International labour standards and NZ legislation are viewed in relation to the growing use of non-standard work.  She proposes that this represents a way of meeting the needs of a diverse labour market, which potentially benefits both the employer and worker.
Insights into Contracting and the Effect on Workers

MP DARIEN FENTON

Abstract
Darien Fenton, former Labour Party Spokesperson on Labour Issues, provides an invited comment which analyses the work conditions of those in contracting arrangements in New Zealand, and seeks to demonstrate the negative effects this type of work has had on a range of people through the analysis of four different case studies.  


Independent Contractor vs. Employee

PETER KIELY*

Introduction
The distinction between independent contractors and employers has long been a contentious issue in employment law and the subject of much litigation. The focus of the first part of this paper is the development of judicial tests traditionally used to determine the status of a worker. This will include a review of notable judicial authorities on the matter, along with a consideration of the ongoing relevance of these tests following legislative developments on the independent contractor/employee distinction in more recent times.

The second part of this paper will explore the practical implications associated with the distinction, including a consideration of the advantages and disadvantages associated with each status. This section will include a brief discussion of the potential financial and legal implications for a business where a worker, initially thought to be an independent contractor ('contractor'), is found to an employee.

* Peter Kiely is Senior Partner at Kiely Thompson Caisley, solicitors in Auckland and Wellington. He has practised in the field of industrial law, employment relations and employment law since 1980. He is Adjunct Professor of Employment Law at Victoria University, Wellington.

“...Where the Shadows lie”: Confusion, misunderstanding, and misinformation about workplace status.

PAM NUTTALL*

Abstract
The "hobbit" amendment was passed through the New Zealand Parliament under urgency on 28 and 29 October 2010 with the declared intention of providing clarity and certainty about the status of workers involved in film production work. The public discourse surrounding the controversy that produced the "hobbit" amendment revealed considerable confusion, misunderstanding and misinformation about the law governing the status of workplace relationships. This article analyses the legislative provisions and common law principles governing employment status at the time the amendment was enacted, as confirmed in the leading case Bryson v Three Foot Six Ltd. From this basis, the article then considers the statutory interpretation of the amendment as enacted, concluding that the current wording does not provided the clarity and certainty its
promoters intended.


* Pam Nuttall is a Senior Lecturer in Law at Auckland University of Technology.


Constitutional Implications of ‘The Hobbit’ Legislation

MARGARET WILSON*

Abstract
In October 2010 an amendment to the Employment Relations Act 2000 was passed under urgency. This amendment redefined the employment status of workers in the film industry. This article addresses the constitutional implications of this process, contrasting the stated need for urgency in relation to the need to necessary to preserve jobs on the 'Hobbit' film production, with the costs in terms of removing the opportunity for consultation with the workers affected, altering their employment status and their capacity to negotiate their remuneration and conditions of work.

* Margaret Wilson is Professor of Law and Public Policy at the University of Waikato, New Zealand

A Political Economy of ‘The Hobbit’ Dispute

NIGEL HAWORTH*

Abstract
This article analyses the "Hobbit Dispute" in terms of a political economy of the global film industry and its connections in New Zealand. It explores the dynamics of the inter-relationships between New Zealand and the globalised world economy, the international film industry and production companies, and the domestic employment relations system. These are proposed as shaping the political and legislative processes that occurred in relation to the local film sector, bringing a number of consequences for workers and the domestic labour movement.


* Nigel Haworth is Professor of Human Resource Development in the Department of Management & International Business, University of Auckland. Private Bag 92019, Auckland, New Zealand. Email: n.haworth@auckland.ac.nz

Book Review

Erling Rasmussen. (2010). Employment Relationships: Workers, Unions and Employers in New Zealand. Auckland: Auckland University Press.

JOHN MURRIE*

* John Murrie is PhD student in the School of Aviation at Massey University

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